Smith v. Tommy Roberts Trucking Co.

Birdsong, Presiding Judge,

dissenting.

I would affirm the grant of summary judgment to defendants on the issue of punitive damages. I think it overstates the evidence to say Smith testified that the second time the truck hit him it “kept pushing him down the road.” This makes it appear defendants’ truck continuously pushed Smith down the road. There is no such evidence. What Smith said was, “I got hit again. This time, he was pushing me, and I actually thought that it was somebody who was crazy, to be honest with you, because, I mean, things like that don’t happen to you, you know, somebody don’t hit you and hit you again, and keep pushing you down the road. I put my car in gear and gunned it off the road.” There is no evidence Rhoades was continuously pushing the car down the road except this statement which in context is merely a dramatic expression of his feeling that to be hit twice, in his estimation, amounted to being “pushed” because it was crazy for “somebody [to] hit you and hit you again.” Although we construe the evidence in Smith’s favor on defendants’ motion for summary judgment, his statement in its entirety was a dramatic expression and does not amount to evidence that Rhoades really did continuously push Smith up the road. Defendant Rhoades was stopped behind Smith at the school crossing and had “just started out from [the crossing guard’s] motioning for traffic to come on” when he “felt it popping.” He testified he hit Smith only once; he “didn’t realize [Smith] was there” but “thought he was moving with the other traffic. ... I didn’t see him.”

Smith claims punitive damages against Rhoades and against TRTC as respondeat superior (which capacity TRTC concedes); and *831against TRTC for negligent entrustment, negligent hiring and negligent retention of Rhoades. Smith’s factual allegations sound persuasive merely by their lengthy recitation, but even if they are true there is no evidence Rhoades’ driving record and TRTC’s possible negligence in hiring him, or any inferences therefrom, had any relation to this collision.

Circumstances authorizing punitive damages “must relate to the tort being sued on.” C & S Nat. Bank v. Bougas, 245 Ga. 412, 413-414 (265 SE2d 562). Punitive damages are allowed only if there is “clear and convincing evidence that the defendant’s actions showed willful misconduct . . . wantonness ... or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b).

The evidence merely shows that Rhoades’ vehicle struck Smith’s vehicle from the rear. Even assuming Rhoades bumped Smith twice, as Smith says, there is no evidence as. to why he did so. There is no basis whatever to infer that the first or second “hit” was intentional or wanton. Nothing can be gleaned from the evidence pertaining to this collision that anything beyond negligence caused it. Other than Smith’s subjective opinion that Rhoades was acting crazy, there is no evidence that Rhoades, in this collision, did anything which by “clear and convincing evidence” showed wilful misconduct, wantonness, or an entire want of care raising a presumption of conscious indifference to consequences. The majority has not shown by facts, or otherwise, that there were actions which were wilful and wanton; without clear and convincing evidence of such acts, punitive damages will not be authorized.

Negligence, even gross negligence, is inadequate to support a punitive damages award. Colonial Pipeline Co. v. Brown, 258 Ga. 115, 118 (3) (b) (365 SE2d 827). Under OCGA § 51-12-5.1 (b), something more than the mere commission of a tort is required for punitive damages. There must be “clear and convincing evidence” in this collision of circumstances of aggravation or outrage. Ivey v. Golden Key Realty, 200 Ga. App. 545 (1) (408 SE2d 811). Construing the evidence most favorably to Smith, the evidence as to this collision does not present “clear and convincing evidence” of aggravation as to support punitive damages, even though the jury may find gross negligence in the truck driver’s actions. Tower Financial Svcs. v. Smith, 204 Ga. App. 910, 918 (423 SE2d 257).

Rhoades’ prior and subsequent traffic violations are irrelevant to his acts in this case. The great danger of admitting them in evidence is that they will infect the jury’s perception of the cause of this collision. See Thomason v. Harper, 162 Ga. App. 441 (289 SE2d 773).

I also think summary judgment to TRTC on the issue of negligent entrustment was proper. Since Smith should not be entitled to *832punitive damages and TRTC admits liability as respondeat superior, “the liability link from the negligence of the driver to the employerentruster has been established rendering proof of negligent entrustment unnecessary and irrelevant.” Id. at 442. Moreover, evidence of negligent entrustment, hiring and retention has no causal relation to this collision. Even violation of regulations as to hiring a carrier driver is actionable negligence only if there was a causal connection between the violations and the injury. Gulf Oil Corp. v. Stanfield, 213 Ga. 436, 438 (99 SE2d 209); Sumner v. Otasco, Inc., 175 Ga. App. 177 (333 SE2d 28).

Decided July 16, 1993 — Reconsideration denied July 30, 1993 — Butler, Wooten, Overby & Cheeley, C. Frederick Overby, Peter J. Daughtery, for appellant. .Gray, Gilliland & Gold, T. Cullen Gilliland, John B. Austin, for appellees.

There is no evidence that this collision had any causal relation to Rhoades’ “other acts” and TRTC’s knowledge or lack of knowledge of them, or TRTC’s negligence in hiring him. Smith’s subjective impression that Rhoades was acting crazy adds a spicy flavor of “wantonness” to this rear-end collision, but at best the only thing the evidence tells us is that Rhoades struck Smith’s car twice. Smith’s subjective impression of Rhoades’ state of mind is not “clear and convincing evidence” required to support an award of punitive damages under § 51-12-5.1. I would be very careful not to confuse the driver’s other acts and the employer’s possible negligence in hiring and retaining him, weighty as they may seem, with the evidence of this collision. Unless such other acts provide “clear and convincing evidence” of wantonness in this case, they are irrelevant and prejudicial. I would affirm the trial court.

I therefore respectfully dissent.

I am authorized to state that Judge Andrews joins in this dissent.